*1 GRANTED; DECISION CERTIORARI VACAT- APPEALS THE COURT OF
OF TRIAL COURT
ED; OF THE JUDGMENT
AFFIRMED.
HARGRAVE, V.C.J., and OPALA,
LAVENDER, SIMMS, WILSON, JJ., concur.
ALMA J., C.J., KAUGER,
DOOLIN,
dissent.
SUMMERS, J., participating. TRETT, Appellee,
R. Thomas & ELECTRIC
OKLAHOMA GAS
COMPANY, Appellant.
corporation,
No. 67352.
Supreme Court of Oklahoma.
April 1989.
Rehearing Denied June
Mordy Mordy, Mordy, and Inc. Burke Ardmore, appellee.
LAVENDER, Justice: Appellee R. an em- Thomas was ployee of The Company Dolese company’s opera- employed quarry at that tions in southern Oklahoma. One company’s operations quarrying was the railway At stone for use as ballast. one of quarry operations had these the stone been plans exhausted Dolese undertook begin quarrying from stone an area to the east, of county on other side road. In crushing order to make use of the rock unit loading and rail on west facilities side road, plans Dolese undertook overpass bridge county build an over the bring road so Dolese tracks could stone from the east side to the facilities on worrying the west side traf- without about public began fic on the road. Dolese con- project struction on this around the middle July in 1981. A line owned O.G. & E. paralleled county road some distance to the west. Because Dolese intended to raise grade for their road make use of the bridge, using the completed tracks road danger coming would be into contact electric Accordingly, Dolese 17, July contacted O.G. & E. on 1981 con- cerning the need to relocate the line. An met with offi- Dolese shortly cials at the work site thereafter to Dolese’s August assess needs. On proposed O.G. & E. sent estimates to Dolese on various methods of relocation. August On 1981 Dolese sent a check to E. to expensive cover the least accompanied by relocation alternative expressing note pleasure that &O.G. agreed had work commence on the relo- August cation the week of August 19, 1981, On Dolese was well along in the construction of the new road bridge. morning On Ross, Rainey, Rice and Binns employees, appellee Trett, H.D. including were Binns, Jr., L. Rod Cook and Robert engaged moving J. pan- reinforced concrete Campbell, Jr., City, for appel- els placement in the bridge construc- lant. tion. fill already Some material had supported the jury E. whether the evidence under the O.G. & new road placed Appeals who was Superintendent verdict lines. The Dolese moving directing operations had panel erroneously dealt with the instruction is- picked up by panels ten ton had one of the *3 sues. a end loader. The sling on front
a cable
affirming
judgment
In
the
ground
up off the
and the
panel
picked
was
Appeals
court the Court of
stated that
trial
to
directed the loader
back
superintendent
agreement
it did not find the contractual
Appel-
in
panel
the
the air.
and turn with
totally
E.
to
O.G. & and Dolese
between
employees who
Trett
one of two
lee
was
liability.
& E. from
The
insulate O.G.
panel
the
as it
moved.
steadying
was
were
merely
question
court
stated that the
holding
a
on to
steel
Appellee Trett was
jury.
was
the
properly submitted to
reinforcing
panel
on
the front
bar
the
when
petition
E. in its
pointed
As
out O.G. &
inadvertently
into
backed
the
end loader
certiorari,
proper
the
standard to be
made
lines and contact was
be-
electric
sufficiency
applied when the
of the evi
bucket, from
the raised loader
which
tween
raised
support
jury
dence to
a
verdict is
the
panel
slung,
was
and one of
ener-
the
support
whether there is
evidence to
Appellee
re-
gized
Trett
electric
against
judgment
party
for the
whom
the
a
a
electric shock as
result
ceived severe
motion
is made.3
the
for directed verdict
this contact.
ruling
In
on
a trial court must
such motion
Appellee
brought
present
Trett
the
ac-
consider as true all the evidence and all the
against
alleging
negli-
E.
that
O.G. &
reasonably
inferences
drawn therefrom fa
brought
on
& E. had
gence
O.G.
party against
vorable to the
whom mo
injuries.
his
The matter
tried to
about
was
any conflicting
tion is made and
evidence
jury
finding
a verdict
a
which returned
disregarde
to
must be
favorable
the movant
contributarily
percent
negli-
to
2.5
Trett
reviewing
ruling
d.4 In
the trial court’s
finding
&
gent and
O.G.
E. to be 34.17
appellate court must examine the
percent negligent
awarding
Trett
record and make a determination
to
$350,000
damages.1
app-
in
& E.
O.G.
reasonably
whether there is
ealed, arguing that Trett’s evidence did
tending
support
judgment.5
to
Here it
support the
not
verdict and that O.G. &
Appeals’
from
appear
does not
the Court of
E.’s
for directed verdict should
motion
have
opinion that such an examination of the
granted and that the trial court erred
pre
record was made. We have therefore
giving
requested by
in not
two instructions
viously granted
and now under
certiorari
Appeals,
The
O.G.
E.2
Okla-
ques
appropriate
take the
review
Divisions,
City
to which this case
homa
was
presented.
tions
affirmed,
originally assigned,
finding
er-
no
points
raised
ror as
argues
appeal
& E.
that Trett
On
O.G.
present any
support
failed to
evidence to
a
petitioned for
O.G. & E.
certiorari from
finding
a duty
that O.G. & E. had breached
Court,
Ap-
arguing
that
Court of
argues
duty
a
apply
proper
owed to Trett.6 Trett
peals had failed
stan-
part,
of on
& E.’s
and a breach of that
dards
review as
O.G.
Inc.,
remaining
percent negligence
Specialties,
4.
was
Messier v. Simmons Gun
687
1.
63.33
Dolese,
(Okla.1984);
against
employer
Haney, supra
v.
assessed
Trett's
which
P.2d 121
Moses
party
in
trial.
note 3.
requested by
2. The two instructions
O.G. & E.
Foods,
Eggleston,
5. Sooner
Inc. v.
and was to the effect that the O.G. & E. known as the “six foot rule.”9 Section 981 carrying charge which was contact- provides: by ed the front end loader eighteen person, firm, corporation No five inches above the level of fill or associ- shall, by added at ation point, individually through Dolese the line’s lowest or top point agent and from the of the fill employee person to the or and no as an contact of approximately the accident was agent employee firm, or any person, nineteen and one half testimony feet. The corporation association, or perform shall of O.G. & E.’s witnesses also established permit any agent or employee per- or height that the line exceeded National Elec- any form activity upon function or any Safety trical requirements imposed Code land, building, highway, premis- or other by on O.G. & E. Corporation es, possible when it is during per- Commissionrules on electrical transmission formance activity any person of such for by lines a minimum of three and a half feet employee or engaged in performing work prior placement to Dolese’s of fill under- connected with or related to such func- neath activity tion or placed to move to or to be position (6) in a within six any feet of
On the issue of O.G. & E.’s timeliness of high voltage overhead electrical line response or request to move the lines conductor, possible or when it is only any evidence submitted Trett was tool, any equipment, machinery his and his testimony wife’s that on the evening accident, or material day by any of the of the to be used per- two of such supervisors Trett’s at the son or quarry brought to be within six stopped by and told him that they any feet of such high overhead volt- attempted to have O.G. & E. age move the lines line or through any conductor later- al, earlier but that the O.G. & E. officials had vertical swinging or during motion Co., 7. Daniel v. Oklahoma Gas & Electric constitutionality 9.The “six-foot rule” stat (Okla.1958); parties utes has not see Rudd v. Public been raised as an Co., appeal issue sary (N.D.Okla.1954). in this F.Supp. Service therefore it is unneces question. for this Court to address the See Application County Building Courthouse Com Daniel, Co., supra; Rotramel v. Public Service (Okla. Stephens County, mission 1965). of, fine of not shall be liable to a more function or ac- performance of such ($500.00), tivity. Five Dollars or than Hundred county jail for imprisonment in the provides: Section (6) months, not to exceed six or term person, corporation firm any When imprisonment; and in both fine and carry on func- any temporarily desires to thereof, if addition such violation results tion, operation closer activity, work physical or electrical contact any high-voltage line or con- proximity to act, high conductor, permitted voltage ductor line or than overhead responsible for the persons firm, person, corporation or associa- promptly notify the shall work be done violating provisions of this high-voltage conductors operator shall be liable to the owner performed and make to be work high voltage line or conductor for oper- arrangements with the appropriate damage facilities and for all to such high-voltage conductors ator opera- by such owner or barriers, tempo- temporary mechanical tor as a such accidental result grounding rary deenergization *5 conductors, temporarily raising of the or required The to essence establish any proceeding with conductors before foreseeability impair duty the clearances the existence of a is of work which would required act. consequences this of the of the breach al duty.11 liability on any opera- leged
The incurred To actual costs establish provid- case, of conductors in high-voltage tor of O.G. & E. in the ing set out shall be clearances as above necessarily have had to offer evi would or paid by persons, corpora- firms to that it was dence establish foreseeable operator high- of the requesting tions E. undertake to O.G. & that Dolese would voltage provide tempo- to said conductors in violation of state construction activities and rary Unless until ar- clearances. ignore the and also contrac statutes would rangements satisfactory operator to the provisions agreed tual to between & conductors for high-voltage such with E. and Dolese in conformance those made, payment operator such have been any failed to offer same statutes. Trett provide duty shall no to clear- be under point. this critical evidence to establish No ances set out herein. as to show that O.G. evidence was offered of the “six foot rule” As a result notice, had which would have actual in necessary it have been would negoti in the contractual conflict with of duty order to find a O.G. & ations, actually begun that con prevent E. to act to the accident which in the area of O.G. & struction activities Trett, E. to that injured for O.G. & foresee prior lines the date of the accident. E.’s to act in of Trett and Dolese would violation to notice essential es We would find such point emphasized by state law. This is exceptional circumstances which tablish very “six foot rule.” The nature of the part of duty create O.G. & would positive language rule is in its and forbids anticipate compliance with state provisions.10 in its The action conflict with regulations and would be insufficient law pe made the Legislature has further rule public. duty fulfill its to the provides: in nal nature. Section 984 competent we find no Because firm, corporation, Every person, associ- jury’s reasonably supportive of the verdict
ation, every agent of and in case the Court of this we VACATE firm, corporation, any person, opinion herein and RE- Appeals’ rendered association, any pro- violates who court judgment of the trial and VERSE guilty visions shall be of a of directions misdemeanor, REMAND matter with upon and confiction there- 10. See Cox, Nye Telephone Bell v. Southwestern Smith Co., (6) appellant ing E.12 six of judgment for within feet electrical line
enter
or conductor assumes the risk
a matter
as
V.C.J.,
SIMMS,
OPALA,
all liability
an owner
lawof
SUMMERS, JJ.,
of physical
as a result
concur.
KAUGER
legislative prescription
plainly
This
in
is
C.J.,
HODGES,
HARGRAVE,
derogation of
6 of
Article
Section
WILSON, JJ.,
ALMA
DOOLIN and
Oklahoma Constitution:
dissent.
contributory negligence
defense
“The
of
WILSON, Justice, dissenting:
ALMA
shall,
assumption
or of
the risk
of
whatsoever,
fact,
be a
cases
presupposes
opinion
majority
The
shall,
times,
at all
left
portion
63 O.S.
§
jury.”
purports
grant
special right
which
Thus,
operators
such owners and
cannot
operators
“indemnity” to owners and
constitutionally
legal
be relieved of the
bur-
high voltage lines is constitutional.1 It
defensively prove,
den to
as a matter
not.
fact,
injured/electrocut-
whether or not an
portion
states:
relevant
(or
principle)
ed
truly
his
assumed
“...
violation
coming
with-
[I]f
[i.e.
physical
risk
contact
any high voltage
in six
over-
high voltage
lines or conductors. Our
head
line or
electrical
results
conductor]
State Constitution at Article
Section
physical
or electrical contact with
supra, prohibits
legislative preclusion
conductor,
overhead
assumption
risk
anything
other
firm,
person,
corporation, or
associa-
*6
question
than a
of fact.
It
be sum-
cannot
violating
of this
marily deemed a matter of
In
law.
shall be liable to the owner or
respect,
challenged portion
63
O.S.
high voltage
of such
line or conductor for
1981,
patently
is
unconstitutional on
§
damage
all
facilities and
face,
dictates,
law,
its
for it
as a matter of
liability
owner
op-
any person coming
within six
erator as a result of
such accidental
of an overhead
conduc-
[Emphasis
mine.]
tor
assumes the risk of
984,
portion
above
of 63
O.S.
§
operator (and
owner or
therefore assumes
face,
on its
violates
Constitution of this
physical injury
electrocution)
risk
23,
Const.,
State at
Any
Okla.
Art.
6.§
regardless
particular
facts and cir-
granted through
action which is
an uncon
operator/owner’s
cumstances or the
own
legislative
stitutional act of the
is
branch
negligence.
inception.
void
without effect from its
I would hold the
quoted por-
heretofore
wholly void,
It
in legal contemplation
is
1981,
unconstitutional,
tion of O.S.
§
inoperative
is as
as if it had never been
and therefore without effect.
passed.
County
State v. Board
Com
County,
missioners
188 Okl.
Creek
(1940).
portion
The above
of
purports prescribe com- disposition (a 12. As a assumption jury result of of this question) matter nation of risk sufficiency question, of the evidence it is process. tantamount over, to a of due denial More unnecessary propositions to address the of error Supreme may review matter regard jury presented by ap- instructions presented not in the lower court if a pellant. public policy public interest is involved. In City, re Initiative Petition No. 10 Oklahoma process exception
1. Lack of due
an
claims are
(1940). Questions
186 Okl.
general
presented
rule
issues not
to a
affecting
right
may
substantial
be considered
appeal.
Austin,
trial court will
considered on
appellate
court of review. Stem v.
W.O.Pettit v. American
Bank
National
Adams,
30 Okl.